IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2015 Term 

No. 14-0200
 

STATE OF WEST VIRGINIA,
 

Plaintiff Below, Respondent
 

v.
 

RICK BROCK,
 

Defendant Below, Petitioner
 

FILED
 

May 22, 2015
 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Appeal from the Circuit Court of Wood County
 

The Honorable Robert A. Waters, Judge
 

Criminal Action No. 13-F-144
 

AFFIRMED
 

Submitted: April 21, 2015 

Filed: May 22, 2015 

Eric K. Powell, Esq. Patrick Morrisey, Esq. 

Powell Law Office Attorney General 

Parkersburg, West Virginia Derek A. Knopp, Esq. 

Attorney for the Petitioner Assistant Attorney General 

Attorneys for the Respondent 

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “This Court’s standard of review concerning a motion to dismiss an 

indictment is, generally, de novo.” Syl. Pt. 1, in part, State v. Grimes, 226 W. Va. 411, 701 

S.E.2d 449 (2009). 

2. “As a general rule, a refusal to give a requested instruction is reviewed 

for an abuse of discretion.” Syl. Pt. 1, in part, State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 

257 (1996). 

3. “A trial court’s refusal to give a requested instruction is reversible error 

only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered 

in the charge actually given to the jury; and (3) it concerns an important point in the trial so 

that the failure to give it seriously impairs a defendant’s ability to effectively present a given 

defense.” Syl. Pt. 11, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994). 

4. “When reviewing a ruling on a motion to suppress, an appellate court 

should construe all facts in the light most favorable to the State, as it was the prevailing party 

below. Because of the highly fact-specific nature of a motion to suppress, particular 

deference is given to the findings of the circuit court because it had the opportunity to 

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observe the witnesses and to hear testimony on the issues. Therefore, the circuit court’s 

factual findings are reviewed for clear error.” Syl. Pt. 1, State v. Lacy, 196 W. Va. 104, 468 

S.E.2d 719 (1996). 

5. “In contrast to a review of the circuit court’s factual findings, the 

ultimate determination as to whether a search or seizure was reasonable under the Fourth 

Amendment to the United States Constitution and Section 6 of Article III of the West 

Virginia Constitution is a question of law that is reviewed de novo. Similarly, an appellate 

court reviews de novo whether a search warrant was too broad. Thus, a circuit court’s denial 

of a motion to suppress evidence will be affirmed unless it is unsupported by substantial 

evidence, based on an erroneous interpretation of the law, or based on the entire record, it is 

clear that a mistake has been made.” Syl. Pt. 2, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 

719 (1996). 

6. Pursuant to the United States Supreme Court’s decision in Illinois v. 

Caballes, 543 U.S. 405 (2005), as a general rule, a dog sniff of the outside of a vehicle 

during a lawful traffic stop is not a search within the meaning of the Fourth Amendment to 

the United States Constitution or article III, section 6 of the West Virginia Constitution. 

7. Following the law established by the United States Supreme Court in 

ii 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

United States v. Rodriguez, 135 S.Ct. 1609 (2015), and Illinois v. Caballes, 543 U.S. 405 

(2005), a police officer may not extend an otherwise-completed traffic stop, absent 

reasonable suspicion, in order to conduct a dog sniff of the outside of a vehicle. 

8. “The function of an appellate court when reviewing the sufficiency of 

the evidence to support a criminal conviction is to examine the evidence admitted at trial to 

determine whether such evidence, if believed, is sufficient to convince a reasonable person 

of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, 

after viewing the evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime proved beyond a reasonable 

doubt.” Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). 

9. “A criminal defendant challenging the sufficiency of the evidence to 

support a conviction takes on a heavy burden. An appellate court must review all the 

evidence, whether direct or circumstantial, in the light most favorable to the prosecution and 

must credit all inferences and credibility assessments that the jury might have drawn in favor 

of the prosecution. The evidence need not be inconsistent with every conclusion save that 

of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility 

determinations are for a jury and not an appellate court. Finally, a jury verdict should be set 

aside onlywhen the record contains no evidence, regardless of how it is weighed, from which 

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the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are 

inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W. Va. 657, 461 

S.E.2d 163 (1995). 

10. “In order to sustain a conviction for violation of W. Va. Code § 

60A-4-411 (2003), by assembling any chemicals or equipment for the purpose of 

manufacturing methamphetamine, the State must prove beyond a reasonable doubt that the 

defendant had actual or constructive possession over the chemicals and/or equipment. In 

order to establish constructive possession where the defendant is present in a vehicle wherein 

such materials are found, the State must prove beyond a reasonable doubt that the defendant 

had knowledge of the presence of the chemicals and/or equipment to be used for the purposes 

of manufacturing methamphetamine and that such items were subject to the defendant’s 

dominion and control.” Syl. Pt. 6, State v. Cummings, 220 W. Va. 433, 647 S.E.2d 869 

(2007). 

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Workman, Chief Justice: 

This case is before the Court upon the appeal of the Petitioner, Rick Brock, 

from an order entered on February 20, 2014, sentencing him to serve two to ten years in the 

West Virginia Penitentiary for operating or attempting to operate a clandestine drug 

laboratory and one to five years for conspiracy to operate or attempt to operate a clandestine 

drug laboratory following a jury conviction on both counts. The circuit court ordered the 

sentences to be served concurrently, but then suspended both to allow the Petitioner to serve 

a three-year period of probation. On appeal, the Petitioner argues that the trial court erred: 

1) in denying his motion to dismiss as both counts one and two in the indictment each attempt 

to charge the defendant with two crimes in violation of West Virginia Rule of Criminal 

Procedure 8; 2) in failing to give the entirety of the Petitioner’s proposed instruction 

numbered one; 3) in denying the Petitioner’s motion to suppress; 4) in determining that there 

was sufficient evidence to uphold the convictions; and 5) in allowing expert testimony 

concerning the dangers and explosiveness of a methamphetamine (also referred to as “meth”) 

lab as the testimony was irrelevant and its probative value was substantially outweighed by 

its prejudicial effect. Based upon our review of the parties’ briefs and oral arguments, the 

appendix record, and all other matters submitted before the Court, we affirm the decision of 

the circuit court. 

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I. Factual and Procedural Background 

The Petitioner and his co-defendant, Terry Abbott, were indicted on July 18, 

2013, for one count of operating or attempting to operate a clandestine drug laboratory (also 

referred to as a “drug lab”) and one count of conspiracy to operate or attempt to operate a 

clandestine drug laboratory.1 According to the evidence at trial, on April 27, 2013, Capt. 

Woodyard of the Wood County Sheriff’s Department was working with a team of officers.2 

Around 1:40 to 1:50 in the morning, Capt. Woodyard began to follow a car that he identified 

as a Monte Carlo. The officer observed the vehicle travel left of center at least three times; 

the driver also repeatedly tapped the brakes of the vehicle and caused the vehicle to go right 

1

The Petitioner and Mr. Abbott were also tried together. Only the Petitioner’s appeal 

of his conviction is the subject of the instant opinion. 

2

During the suppression hearing, Capt. Woodyard testified that he was a part of a drug 

enforcement team and he was performing surveillance, in an unmarked car, of a house where 

controlled meth buys had been made. After 1:00 a.m., Capt. Woodyard saw a white Monte 

Carlo pull up to the house he was watching and saw at least two passengers in the car. One 

of the passengers exited the vehicle and entered the house. The vehicle stayed at the house 

for fifteen to twenty minutes then left and returned within about thirty minutes. On the 

second trip to the house, the vehicle again had two passengers. The officer was able to 

identify one of the passengers as the co-defendant, Terry Abbott. Again, one person exited 

the vehicle, went into the house and remained inside for about fifteen minutes. The 

individual then left the house, returned to the vehicle and the vehicle then left a second time. 

Given the lack of any evidence regarding who was in the house or what was going on 

inside the house on the morning of April 27, 2013, the trial court found the foregoing 

testimony concerning events leading up to the vehicle stop inadmissible at trial. 

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of the fog line. 

Because Capt. Woodyard was in plain clothes and driving an unmarked car, 

he called for a marked car “to make the traffic stop[,] ” after observing the erratic driving. 

West Virginia State Police Trooper C.S. Jackson was working in conjunction with Capt. 

Woodyard and responded to the call. Capt Woodyard testified that he continued to follow 

the Monte Carlo until Trooper Jackson arrived. Capt. Woodyard testified that he observed 

Trooper Jackson turn on his lights and pull over the car; Capt. Woodyard did not stop with 

Trooper Jackson. 

Trooper Jackson testified that Capt. Woodyard informed him about a potential 

impaired driver and that the vehicle was a Monte Carlo. Trooper Jackson did not 

independently observe any traffic violations. Trooper Jackson stopped the vehicle based 

upon the information provided by Capt. Woodyard.3 The stop was videotaped. The 

Petitioner was driving the vehicle, while the co-defendant Abbott was in the passenger seat. 

The trooper asked for the vehicle registration and for the Petitioner’s license. The Petitioner 

produced the registration, but could not produce an identification. The trooper asked the 

Petitioner to step out of the vehicle. The Petitioner got into his wallet and produced a 

license; however, it was a revoked Ohio driver’s license. Trooper Jackson testified that the 

3

There was also another state trooper present at the traffic stop. 

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Petitioner “was acting real nervous. He was fidgety.” 

The Petitioner had borrowed the vehicle from the owner, Blossom Abbott, the 

Petitioner’s girlfriend. The trooper asked if there was anything illegal in the car, to which 

the Petitioner answered that he did not believe so. The trooper asked if he could search the 

car and the Petitioner said no. About six minutes after the stop occurred, the trooper 

requested a canine unit. At approximately twelve minutes and forty-eight seconds into the 

video, an officer stated that he thought it may be an active drug lab. 

Trooper Jackson testified that the dog alerted him to the presence of drugs on 

the front passenger-side door of the vehicle. Once the dog detected the presence of drugs, 

Trooper Jackson opened the passenger door and began to search the vehicle. The trooper 

stated that he first observed coffee filters and then a soda pop bottle in a blue insulated cooler 

bag. The pop bottle had sediment in the bottom on the inside. Trooper Jackson testified 

that “[w]hen I got closer, I then detected a chemical odor[,]” that he recognized as being 

“indicative of a meth lab.” The trooper also “observed a vapor or cloud emitting from that 

[referring to the bag] which raised extreme caution[,]” as the trooper explained “[i]t is highly 

explosive if the pressure is exceeded.” Trooper Jackson referred to what he had found as 

“a young pop clandestine laboratory or shake and bake.” The trooper also stated that he 

found a syringe, a cold pack, additional coffee filters, including a used coffee filter with 

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white powder residue, and ammonium nitrate. 

Alisha Neil, a forensic chemist with the West Virginia State Police Forensic 

Laboratory, testified that four pieces of evidence were submitted to the West Virginia State 

Police Laboratory for analysis. Only two of the four items tested positive for meth including 

Item 1.1, which consisted of two plastic bags containing white and off-white powder in 

chunks and coffee filters weighing approximately .12 grams. Evidence identified as Item 

2.2, which was a powder residue, also tested positive for meth. 

The final witness for the State was Douglas E. Sturm, a police officer with the 

City of Parkersburg Police Department and a certified instructor on methamphetamine 

awareness and recognition, who testified as an expert. Officer Sturm testified regarding the 

“one-bottle method” or “shake and bake method” of making meth. Officer Sturm reviewed 

the photographs and evidence taken from the vehicle the Petitioner was in at the time of the 

traffic stop. The officer testified that for “the chemical reaction, everything appears to be 

there for this bottle. The chemical reaction has already taken place, but it was stopped for 

one reason or another.” The officer later clarified during cross-examination that while the 

reaction was stopped, “[i]t [referring to the chemical reaction] . . . [did] not appear to be done 

to me.” 

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The Petitioner and his co-defendant, Terry Abbott, did not testify at trial. 

Additionally, they did not present any evidence as part of their respective defenses. 

On December 12, 2013, following a two-day jury trial, the Petitioner was 

convicted of operating or attempting to operate a clandestine drug laboratory and conspiracy 

to operate or attempt to operate a clandestine drug laboratory. These convictions form the 

basis for the instant appeal. 

II. Standard of Review 

The Petitioner has asserted several assignments of error involving various legal 

principles and differing standards of review. Thus, we will address the applicable standard 

of review within the discussion section regarding the assigned error. 

III. Discussion 

A. The Indictment 

The first issue concerns whether the trial court erred bydenying the Petitioner’s 

motion to dismiss the indictment. The Petitioner argues that he was improperly charged with 

only two crimes – operating or attempting to operate a clandestine drug laboratory as one 

count and conspiracy to operate or attempt to operate a clandestine laboratory as count two. 

Instead, he maintains that operating a clandestine drug lab is a separate offense from the 

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crime of attempting to operate a clandestine drug lab. Likewise, the Petitioner contends that 

a conspiracy to operate a clandestine lab is a separate offense from a conspiracy to attempt 

to operate a clandestine lab. 

As support for his argument, the Petitioner relies upon Rule 8 of the West 

Virginia Rules of Criminal Procedure. Rule 8 requires separate counts for each offense as 

follows: 

(1) Permissive Joinder. – Two or more offenses may be 

charged in the same indictment or information in a separate 

count for each offense if the offenses charged, whether felonies 

or misdemeanors or both, are of the same or similar character. 

(2) Mandatory Joinder. – If two or more offenses are 

known or should have been known by the exercise of due 

diligence to the attorney for the state at the time of the 

commencement of the prosecution and were committed within 

the same county having jurisdiction and venue of the offenses, 

all such offenses upon which the attorney for the state elects to 

proceed shall be prosecuted by separate counts in a single 

prosecution if they are based on the same act or transaction or 

on two or more acts or transactions connected together or 

constituting parts of a common scheme or plan, whether felonies 

or misdemeanors or both. Any offense required by this rule to 

be prosecuted by a separate count in a single prosecution cannot 

be subsequently prosecuted unless waived by the defendant. 

(Emphasis added). Under the Petitioner’s theory, the indictment violates Rule 8 because 

there should have been four counts – one for the charge of operating a clandestine lab; one 

for attempting to operate a clandestine lab; one for conspiracy to operate a clandestine lab; 

and, one for conspiracy to attempt to operate a clandestine lab. Instead, there were only two 

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counts in the indictment. 

“This Court’s standard of review concerning a motion to dismiss an indictment 

is, generally, de novo.” Syl. Pt. 1, in part, State v. Grimes, 226 W. Va. 411, 701 S.E.2d 449 

(2009). Under this standard of review, we examine the first issue before us. 

The provisions of West Virginia Code § 60A-4-411 (2014) reveal that the 

offense with which the Petitioner was charged was not “two or more offenses” as the 

Petitioner maintains. Rather, a plain reading of the statute evinces that the Legislature set 

out in West Virginia Code § 60A-4-411 a single crime. To that end, West Virginia Code § 

60A-4-411(a) provides: 

Any person who operates or attempts to operate a 

clandestine drug laboratory4 is guilty of a felony and, upon 

conviction, shall be confined in a state correctional facility for 

not less than two years nor more than ten years or fined not less 

than five thousand dollars nor more than twenty-five thousand 

4

The statute also provides: 

For purposes of this section, a ‘clandestine drug 

laboratory’ means any property, real or personal, on or in which 

a person assembles any chemicals or equipment or combination 

thereof for the purpose of manufacturing methamphetamine, 

methylenedioxymethamphetamine or lysergic acid diethylamide 

in violation of the provisions of section four hundred one of this 

article. 

W. Va. Code § 60A-4-411(b). 

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dollars, or both. 

Id. (footnote added). The statute indicates that it is one offense that can be committed in two 

ways – to operate or to attempt to operate. Thus, contrary to the Petitioner’s argument, the 

statute sets forth a single offense, not two separate offenses. 

Moreover, the indictment in this case tracked the language of West Virginia 

Code § 60A-4-411. As we have previously held, 

[a]n indictment for a statutory offense is sufficient if, in 

charging the offense, it adopts and follows the language of the 

statute, or uses substantially equivalent language, and plainly 

informs the accused of the particular offense charged and 

enables the court to determine the statute on which the charge is 

founded. 

Syl. Pt. 3, Pyles v. Boles, 148 W. Va. 465, 135 S.E.2d 692 (1964). 

Likewise, the conspiracy charge, which is contained in a separate count, is a 

separate offense. This Court held in syllabus point three of State v. Burd, 187 W. Va. 415, 

419 S.E.2d 676 (1991), that 

‘[i]n order for the State to prove a conspiracy under W. 

Va. Code, 61-10-31(1),5 it must show that the defendant agreed 

with others to commit an offense against the State and that some 

overt act was taken by a member of the conspiracy to effect the 

object of that conspiracy.’ Syl. Pt. 4, State v. Less, 170 W.Va. 

5

West Virginia Code § 61-10-31 provides that “[i]t shall be unlawful for two or more 

persons to conspire (1) to commit any offense against the State . . . if . . . one or more of such 

persons does any act to effect the object of the conspiracy.” 

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259, 294 S.E.2d 62 (1981). 

(Footnote added). 

Having examined the relevant law on this issue, we agree with the trial court’s 

determination that the clandestine drug laboratory statute simply allows the crime to be 

committed in two different ways, “but it is still one crime, and that’s the clear intent of the 

legislature in using the language of operating or attempting to operate, so there is no violation 

of Rule 8.” Consequently, there was no error in the circuit court’s denial of the Petitioner’s 

motion to dismiss. 

B. The Instruction 

The next issue raised is whether the circuit court erred in failing to give the 

entirety of the Petitioner’s proposed jury instruction numbered one,6 which concerned the 

6

The instruction given by the trial court contained the first two paragraphs of the 

Petitioner’s proposed instruction. See paragraphs one and three of the instruction given by 

the trial court above. At issue are the following two paragraphs not given by the trial court: 

Therefore, if the jury, and each member of the jury, has 

a reasonable doubt as to whether the Defendant, Rick Brock, 

had knowledge of the presence of the chemicals and/or 

equipment to be used for the purpose of manufacturing 

methamphetamine, you should find the Defendant, Rick Brock, 

not guilty of Operating or Attempting to Operate a Clandestine 

Drug Laboratory. 

In addition, if the jury, and each member of the jury, has 

(continued...) 

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burden of proof for actual or constructive possession of a controlled substance. The circuit 

court gave the following instruction, rather than the Petitioner’s proposed instruction: 

In West Virginia mere physical presence on premises in 

which a controlled substance is found does not give rise to a 

presumption of possession of a controlled substance, but is 

evidence to be considered along with other evidence 

demonstrating conscious dominion over the controlled 

substance. 

A conviction should not be obtained by piling inference 

upon inference. An inference is reasonable only if the 

conclusion flows from logical and probabilistic reasoning. The 

evidence supporting the conviction must be substantial and do 

more than raise a suspicion of guilt. To prove constructive 

possession when there is joint occupancy of a vehicle, the State 

must present direct or circumstantial evidence to show some 

connection or nexus individually linking the defendant to the 

contraband. The State must present some evidence supporting 

at least a plausible inference that the defendant had knowledge 

of an access to the contraband. 

In order to sustain a conviction for Operating or 

Attempting to Operate a Clandestine Drug Laboratory by 

assembling any chemicals or equipment for the purpose of 

manufacturing methamphetamine, the State must prove beyond 

a reasonable doubt that the defendant had actual or constructive 

possession over the chemicals and/or equipment. In order to 

establish constructive possession where the defendant is present 

in a vehicle wherein such materials are found, the State must 

prove beyond a reasonable doubt that the defendant had 

knowledge of the presence of the chemicals and/or equipment 

to be used for the purposes of manufacturing methamphetamine 

and that such items were subject to the defendant’s dominion 

6

(...continued) 

a reasonable doubt as to whether the Defendant, Rick Brock, 

exercised dominion and control over the chemicals and/or 

equipment, then you should find the Defendant, Rick Brock, not 

guilty. State v. Cummings, 647 S. E.2d 869 (W. Va. 2007). 

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and control. 

The Petitioner argues that it was error for the circuit court not to include the last 

two paragraphs of his proposed instruction, which consisted of instructing the jury that if they 

have a reasonable doubt as to whether the defendant had knowledge or exercised dominion 

and control over the chemicals and/or equipment, then they should find him not guilty. The 

Respondent argues that even though the Petitioner’s proposed instruction is “substantively 

correct,” the trial court’s instructions fully covered the State’s burden to prove constructive 

possession, as well as the burden to prove the case beyond a reasonable doubt. 

“As a general rule, a refusal to give a requested instruction is reviewed for an 

abuse of discretion.” Syl. Pt. 1, in part, State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 

(1996). Moreover, “[w]hen assessing whether the trial court properly exercised that 

discretion, a reviewing court must examine the instructions as a whole to determine if they 

sufficiently cover the issues in the case and focus on the facts presented by the evidence.” Id. 

at 285, 489 S.E.2d at 262. We also held in syllabus point eleven of State v. Derr, 192 W. Va. 

165, 451 S.E.2d 731 (1994), that 

[a] trial court’s refusal to give a requested instruction is 

reversible error only if: (1) the instruction is a correct statement 

of the law; (2) it is not substantially covered in the charge 

actually given to the jury; and (3) it concerns an important point 

in the trial so that the failure to give it seriously impairs a 

defendant’s ability to effectively present a given defense. 

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When the jury instructions given by the trial court in the instant case are 

examined in their entirety, the jury was properly instructed regarding the burden of proof 

being on the State to prove guilt beyond a reasonable doubt in both the standard and 

constructive possession instructions. The standard instructions also covered the law that the 

defendant is presumed innocent and that the burden of proof never shifted to the defendant. 

Consequently, the portion of the Petitioner’s proposed instruction that the trial court did not 

include was cumulative and substantially covered by the instructions given to the jury. 

Therefore, the trial court did not abuse its discretion in failing to give the entire proposed 

instruction numbered one offered by the Petitioner. 

C. Motion to Suppress 

The next assigned error concerns whether the trial court erred in denying the 

Petitioner’s motion to suppress.7 The Petitioner argued that the initial stop of the vehicle was 

unlawful8 and pretextual, and that the police lacked probable cause to search the vehicle. The 

7

The Petitioner sought to suppress all the items seized as a result of the search of the 

vehicle the Petitioner was operating. 

8

We note that even though the Petitioner assigned as error that the initial stop was 

“unlawful,” the Petitioner failed to develop this aspect of the assigned error. The Petitioner 

states that he “was stopped on a pretext for offenses not committed in the trooper’s 

presence[,]” and “the initial stop of the vehicle was a mere pretext and was purportedly based 

solely on Captain Woodyard’s observation of very minor traffic violations.” The Petitioner 

does not elaborate on either statement with any law. Further, the Petitioner fails to address 

(continued...) 

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trial court denied the motion, finding that there was reasonable suspicion to stop the vehicle 

and there was a reasonable delay for the drug-sniffing dog to arrive. The trial court also found 

that once the dog detected the presence of drugs, there was probable cause to search it. The 

Petitioner argues that the canine sniff constituted a search in and of itself that had to be 

8

(...continued) 

or refute in his reply brief the Respondent’s argument that the 

Petitioner, however, does not challenge the lawfulness of the 

initial stop, but argues on appeal that the actions of the 

subsequent dog sniff constituted a search for which there was no 

probable cause, and that law enforcement is not automatically 

entitled to delay a traffic stop for the purpose of bringing a dog 

to the traffic stop. 

Finally, the Petitioner was willing to concede during oral argument that there was a lawful 

stop based upon a reasonable articulable suspicion. See Syl. Pt 1, in part, State v. Stuart, 192 

W. Va. 428, 452 S.E.2d 886 (1994) (“Police officers may stop a vehicle to investigate if they 

have an articulable reasonable suspicion that the vehicle is subject to seizure or a person in 

the vehicle has committed, is committing, or is about to commit a crime.”). 

The alleged unlawfulness of the initial stop therefore was neither discussed with any 

specificity nor supported with any particular legal authority to substantiate the Petitioner’s 

claim. As this Court has consistently held, “[a]lthough we liberally construe briefs in 

determining issues presented for review, issues which are . . . mentioned only in passing but 

are not supported with pertinent authority [ ] are not considered on appeal.” State v. LaRock, 

196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996). See also Sale ex rel. Sale v. Goldman, 

208 W. Va. 186, 199-200 n. 22, 539 S.E.2d 446, 459-60 n. 22 (2000) (deeming assignment 

of error that “is terse and lacks any authority to support it” to have been waived); Tiernan v. 

Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 140 n. 10, 506 S.E.2d 578, 583 n. 10 

(1998) (“Issues not raised on appeal or merely mentioned in passing are deemed waived.” 

(citation omitted)); State v. Lilly, 194 W. Va. 595, 605 n. 16, 461 S.E.2d 101, 111 n. 16 

(1995) (“[C]asual mention of an issue in a brief is cursory treatment insufficient to preserve 

the issue on appeal.” (internal quotations and citation omitted)); Syl. Pt. 6, Addair v. Bryant, 

168 W. Va. 306, 284 S.E.2d 374 (1981) (“Assignments of error that are not argued in the 

briefs on appeal may be deemed by this Court to be waived.”). 

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supported by probable cause. The Respondent maintains that the trial court properly found 

probable cause existed to search the inside of the vehicle once dog indicated the presence of 

drugs on the passenger-side door. 

The standard for review on a motion to suppress is set forth in syllabus points 

one and two of State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996) as follows: 

When reviewing a ruling on a motion to suppress, an 

appellate court should construe all facts in the light most 

favorable to the State, as it was the prevailing party below. 

Because of the highly fact-specific nature of a motion to 

suppress, particular deference is given to the findings of the 

circuit court because it had the opportunity to observe the 

witnesses and to hear testimony on the issues. Therefore, the 

circuit court’s factual findings are reviewed for clear error. 

In contrast to a review of the circuit court’s factual 

findings, the ultimate determination as to whether a search or 

seizure was reasonable under the Fourth Amendment to the 

United States Constitution and Section 6 of Article III of the 

West Virginia Constitution is a question of law that is reviewed 

de novo. Similarly, an appellate court reviews de novo whether 

a search warrant was too broad. Thus, a circuit court’s denial of 

a motion to suppress evidence will be affirmed unless it is 

unsupported by substantial evidence, based on an erroneous 

interpretation of the law, or based on the entire record, it is clear 

that a mistake has been made. 

The focus of the issue before the Court is whether the use of a drug-sniffing dog 

constituted a search that must be supported by probable cause. We have not previously 

addressed the use of drug-sniffing dogs in the context of a lawful traffic stop. The United 

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States Supreme Court, however, considered this issue in Illinois v. Caballes, 543 U.S. 405 

(2005).9 In Caballes, a state trooper stopped the defendant for speeding. A second trooper 

also responded to the stop with a drug-sniffing dog. While the first trooper wrote the warning 

ticket, the second trooper walked around the car with the dog. The dog alerted the officers 

to the presence of drugs in the trunk of the car. The troopers searched the truck, found 

marijuana and arrested the defendant. The entire incident lasted less than ten minutes. The 

defendant was convicted of a narcotics offense. Id. at 406-07. On appeal to the Illinois 

Supreme Court, that court reversed, concluding that because the dog sniff occurred “without 

any ‘specific and articulable facts’ to suggest drug activity, the use of the dog ‘unjustifiably 

enlarg[ed] the scope of a routine traffic stop into a drug investigation.’” Id. at 407 (quoting, 

in part, People v. Caballes, 802 N.E.2d 202, 205 (Ill. 2003)). The case was then appealed to 

the United States Supreme Court. 

The Supreme Court, in Caballes, framed the issue before it as “‘[w]hether the 

Fourth Amendment10 requires reasonable, articulable suspicion to justify using a drug9

This Court did cite to Caballes favorably in State v. Rogers, No. 13-0496, 2014 WL 

2683047, at *5(W. Va. Supreme Court, June 13, 2014) (memorandum decision)(finding that 

“[o]nce dog alerted to drugs in the vehicle, this gave the police probable cause to believe that 

there were in fact drugs.”). 

10Accord article III, section 6 of the West Virginia Constitution (“The rights of the 

citizens to be secure in their houses, persons, papers and effects, against unreasonable 

searches and seizures, shall not be violated. No warrant shall issue except upon probable 

cause, supported by oath or affirmation, particularly describing the place to be searched, or 

(continued...) 

16
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

detection dog to sniff a vehicle during a legitimate traffic stop.’” Id. (footnote added). The 

United States Supreme Court determined that “[a] dog sniff conducted during a concededly 

lawful traffic stop that reveals no information other than the location of a substance that no 

individual has any right to possess does not violate the Fourth Amendment.”11 Id. at 410; see 

City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) (recognizing that a canine sniff of an 

automobile is not a search); see also United States v. Place, 462 U.S. 696, 706-07 (1983) 

(holding that a canine sniff of luggage does not constitute a search). 

Other jurisdictions have adopted the law enunciated by the Supreme Court in 

Caballes. See U. S. v. Branch, 537 F.3d 328, 335-36 (4th Cir. 2008) (“A canine sniff is also 

constitutionallyacceptable if performed within ‘the time reasonablyrequired’ to issue a traffic 

citation. Caballes, 543 U.S. at 407, 410, 125 S. Ct. 834. This is because a dog sniff is not a 

search within the meaning of the Fourth Amendment, and it therefore requires no additional 

justification. Id. at 408-09, 125 S.Ct. 834; see also United States v. Place, 462 U.S. 696, 707, 

10(...continued) 

the person or thing to be seized.”). 

11The Petitioner relies upon Florida v. Jardines, 133 S.Ct. 1409 (2013), which 

involved the use of a drug-sniffing dog on the front porch of a home to investigate an 

unverified tip that marijuana was being grown inside the home. In Jardines, the United 

States Supreme Court held that “[t]he government’s use of trained police dogs to investigate 

the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth 

Amendment.” Id. at 1417-18. Because the instant case is not predicated upon any argument 

that the police dog was being used to search a home or the immediate surroundings of the 

home, the holding in Jardines is not applicable to the facts of this case. 

17
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)”); People v. Esparza, 272 P.3d 367, 370-71 (Colo. 

2012) (“In light of the Supreme Court’s holding in Caballes, permitting a suspicionless dog 

sniff of a lawfully detained vehicle, and our own reconciliation of the federal and state 

constitutional provisions governing dog sniffs, the district court’s suppression order no longer 

finds support in the provisions of the state constitution. Because the dog sniffs of the 

defendant’s vehicle in these cases were neither a search cognizable under article II, section 

7 of the Colorado Constitution [referring to the search and search provision] nor the fruit of 

an unlawful search or seizure, the district court’s suppression order is reversed, and the case 

is remanded for further proceedings.”); Shelton v State, 45 So.3d 1203,1209 (Miss. Ct. App. 

2010) (stating that “‘[e]ven without reasonable, articulable suspicion, the performance of a 

dog sniff of the outside of a vehicle by a trained canine during a routine, valid traffic stop is 

not a violation of one’s Fourth Amendment rights against unreasonable searches and 

seizures.’ Jaramillo v. State, 950 So.2d 1104, 1107 (Miss. Ct. App. 2007).”); Haas v. State, 

172 S.W.3d 42, 51 (Tex. Ct. App. 2005) (relying upon Caballes in stating that “[e]ven in the 

absence of reasonable suspicion, a sniff of the outside of a vehicle by a trained canine during 

a routine, valid traffic stop is not a search within the meaning of the Fourth Amendment.”).12 

Like most other jurisdictions across the country, we now hold pursuant to the 

12But see People v. Devone, 931 N.E.2d 70, 74 (N.Y. 2010) (holding under the New 

York Constitution that “a canine sniff of the exterior of an automobile constitutes a search 

. . . .”). 

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United States Supreme Court’s decision in Illinois v. Caballes, 543 U.S. 405 (2005), as a 

general rule, a dog sniff of the outside of a vehicle during a lawful traffic stop is not a search 

within the meaning of the Fourth Amendment to the United States Constitution or article III, 

section 6 of the West Virginia Constitution. Consequently, the Petitioner’s argument that the 

use of a drug-sniffing dog constituted a search in and of itself that had to be supported by 

probable cause is without merit. The use of the drug-sniffing dog on the outside of the vehicle 

during the lawful13 traffic stop was not a search requiring probable cause to effectuate. 

Because the trial court determined that there was a “reasonable delay to obtain 

the narcotic sniffing dog[,]” and in light of the recent decision of the United States Supreme 

Court in United States v. Rodriguez, 135 S.Ct. 1609 (2015), we find it necessary to resolve 

the issue of whether a law enforcement officer is entitled to delay a traffic stop in order to 

bring in a drug-sniffing dog to sniff the outside of the vehicle. In Caballes, the Supreme 

Court indicated that a traffic stop “that is justified solely by the interest in issuing a warning 

ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required 

to complete that mission.” Id. at 407. 

The United States Court of Appeals for the Fourth Circuit in Branch discussed 

the time reasonably required for a routine traffic stop in terms that “[t]he maximum acceptable 

13See supra note eight. 

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length of a routine traffic stop cannot be stated with mathematical precision. Instead, the 

appropriate constitutional inquiry is whether the detention lasted longer than necessary, given 

its purpose.” 537 F.3d at 335. As the Fourth Circuit noted: 

Observing a traffic violation provides sufficient 

justification for a police officer to detain the offending vehicle for 

as long as it takes to perform the traditional incidents of a 

routine traffic stop. See, e.g., Caballes, 543 U.S. at 407, 125 

S.Ct. 834; Whren [ v. United States], 517 U.S. [806] at 810, 116 

S.Ct. 1769 [(1996)]; United States v. Foreman, 369 F.3d 776, 

781 (4th Cir. 2004). Thus, pursuant to such a stop, a police 

officer may “request a driver’s license and vehicle registration, 

run a computer check, and issue a citation.” Foreman, 369 F.3d 

at 781. 

Branch, 537 F.3d at 335-36 (emphasis added). Further, “[t]he officer may also, ‘in the 

interest of personal safety,’ request that the passengers in the vehicle provide identification, 

at least so long as the request does not prolong the seizure. United States v. Soriano-Jarquin, 

492 F.3d 495, 500-01 (4th Cir. 2007).” United States v. Vaughan, 700 F.3d 705, 710 (4th Cir. 

2012). The officer also may “‘as a matter of course order the driver14 of a lawfully stopped 

car to exit his vehicle.’” Id. (quoting Maryland v. Wilson, 519 U.S. at 410 (citing 

Pennslyvania v. Mimms, 434 U.S. 1906 (1977)(per curiam)) (footnote added). 

On the day the case sub judice was argued before this Court, the United States 

Supreme Court issued its decision in Rodriguez, wherein it revisited Caballes and the 

14Because the justification for having the driver exit a vehicle is grounded in officer 

safety, it extends to passengers. See Wilson, 519 U.S. at 414-15. 

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reasonableness of prolonging a lawful traffic stop in order to conduct a dog-sniff of a vehicle. 

In Rodriguez, a K-9 officer stopped the defendant and his passenger for driving on a highway 

shoulder, which was a violation of Nebraska law. Rodriguez, 135 S.Ct. at 1612. The officer 

asked for the defendant’s license, registration, and proof of insurance. The officer also 

completed a records check on the passenger and called for a second officer. The officer wrote 

the defendant a warning. He then gave the warning to the defendant, explained it to him, and 

returned the documents to the defendant and his passenger. Id. at 1613. 

Despite the completion of issuing the warning, the officer did not consider the 

defendant free to leave. After giving the warning to the defendant, the officer asked the 

defendant if he could walk his dog around the defendant’s vehicle. The defendant said no and 

then the officer instructed the defendant to turn off the ignition to his truck, exit the truck and 

stand in front of the officer’s car while he waited for the second officer. Id. The second 

officer arrived and took his dog and walked around the truck two times. During the second 

pass, the dog alerted the officers to the presence of drugs. A search of the vehicle revealed 

a large bag of meth. Id. 

The defendant in Rodriguez was indicted on federal charges. He moved to 

suppress the evidence seized on the ground that the officer had prolonged the traffic stop 

without reasonable suspicion in order to conduct the drug sniff. Id. The Magistrate Judge, 

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District Court and the United States Court of Appeals for Eighth Circuit upheld the search and 

denied the motion to suppress, determining that “the extension of the stop by ‘seven to eight 

minutes’ for the dog sniff was only ‘a de minimis intrusion’” of the defendant’s personal 

liberty. Id. (quoting, in part, U. S. v. Rodriguez, 741 F.3d 905, 907 (8th Cir. 2014)). 

The United States Supreme Court granted certiorari “to resolve a division 

among lower courts on the question whether police routinely may extend an otherwisecompleted traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.” 

Rodriguez, 135 S.Ct. at 1614. Relying, in part, on its prior decision in Caballes, the Supreme 

Court found that “[i]f an officer can complete traffic-based inquiries expeditiously, then that 

is the amount of ‘time reasonably required to complete [the stop’s] mission.’ As we said in 

Caballes and reiterate today, a traffic stop ‘prolonged beyond’ that point is ‘unlawful.’” Id. 

at 1616 (quoting, in part, Caballes, 543 U. S. at 407). Thus, the Supreme Court framed the 

“critical” question as “not whether the dog sniff occurs before or after the officer issues a 

ticket . . . but whether conducting the sniff ‘prolongs’ – i.e., adds time to – ‘the stop[.]’” Id. 

The Supreme Court vacated the judgment of the Eighth Circuit and remanded the case for 

further proceedings consistent with the opinion in light of the fact that the Eighth Circuit had 

left unresolved the issue of “whether reasonable suspicion of criminal activity justified 

detaining Rodriguez beyond completion of the traffic infraction investigation[.]” Id. at 1616­

17. 

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Therefore, following the law established by the United States Supreme Court 

in United States v. Rodriguez, 135 S.Ct. 1609 (2015), and Illinois v. Caballes, 543 U.S. 405 

(2005), a police officer may not extend an otherwise-completed traffic stop, absent reasonable 

suspicion, in order to conduct a dog sniff of the outside of a vehicle. As the Supreme Court 

opined “[i]f an officer can complete traffic-based inquiries expeditiously, then that is the 

amount of ‘time reasonably required to complete [the stop’s] mission.’” Id. (quoting, in part, 

Caballes, 543 U.S. at 407). 

In examining the facts now before us we are led to the inevitable conclusion that 

the state trooper conducting the lawful traffic stop of the Petitioner’s vehicle did not 

unreasonably extend that stop beyond its completion in order to conduct a dog-sniff of the 

outside of the vehicle. Rather, a review of the evidence submitted at the suppression hearing 

in this case, including the videotape of the traffic stop, establishes that the lawful stop for 

suspicion of impaired driving was never completed due to the Petitioner’s nervousness and 

being fidgety, in addition to the Petitioner’s inability to provide an identification, all of which 

culminated in the Petitioner being asked to exit his vehicle. This series of events caused the 

trooper to inquire as to whether there was anything illegal in the vehicle and the trooper 

requesting a canine unit. The dog then alerted the officers to the presence of drugs on the 

23
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

passenger side of the vehicle.15 Because the evidence fails to show that the mission of the 

lawful traffic stop was completed at the time the dog sniff of the vehicle occurred,16 we find 

that there was no violation of the Petitioner’s rights against unreasonable searches and seizure; 

the trial court properly denied the motion to suppress the evidence seized from the vehicle. 

D. Sufficiency of the Evidence 

The Petitioner next argues that there was insufficient evidence introduced at trial 

to sustain his conviction.17 Specifically, the Petitioner posits that this case is similar to that 

of State v. Cummings, 220 W. Va. 433, 647 S.E.2d 869 (2007), in which the Court found that 

there was a lack of evidence introduced to prove that the defendant had constructive 

15Even though the length of the detention does not answer the inquiry of whether it 

was reasonable under the Caballes and Rodriguez standard, this whole series of events 

transpired in under thirteen minutes. 

16Due to the fact that the mission of the lawful traffic stop was not completed at the 

time of the dog sniff, we agree with the circuit court’s determination that there was no 

unreasonable delay in obtaining the canine unit. 

17In order to be convicted of operating or attempting to operate a clandestine drug lab, 

the jury had to find beyond a reasonable doubt that the Petitioner did unlawfully, 

intentionally and feloniously operate or attempt to operate a clandestine drug laboratory by 

assembling chemicals and/or equipment for the purpose of manufacturing methamphetamine, 

a schedule II non-narcotic controlled substance. See W. Va. Code § 60A-4-411. Likewise, 

to be convicted of conspiracy, the jury had to find that the Petitioner did unlawfully and 

intentionally conspire with his co-defendant, Terry Abbott, to commit the offense of 

operating or attempting to operate a clandestine drug laboratory and that one or both of the 

two co-defendants committed some overt act in furtherance of the conspiracy. See Burd, 187 

W. Va. at 415, 419 S.E.2d at 676, Syl. Pt. 3. 

24
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

possession of chemicals to be used for the production of the meth or that the defendant 

exercised control over the chemicals. Conversely, the Respondent maintains that there was 

sufficient evidence to support the Petitioner’s conviction. 

We use the following standard of review in challenges to the sufficiency of the 

evidence to support a conviction: 

The function of an appellate court when reviewing the 

sufficiency of the evidence to support a criminal conviction is to 

examine the evidence admitted at trial to determine whether such 

evidence, if believed, is sufficient to convince a reasonable 

person of the defendant’s guilt beyond a reasonable doubt. Thus, 

the relevant inquiry is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime proved 

beyond a reasonable doubt. 

Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). Further, we have held 

that: 

A criminal defendant challenging the sufficiency of the 

evidence to support a conviction takes on a heavy burden. An 

appellate court must review all the evidence, whether direct or 

circumstantial, in the light most favorable to the prosecution and 

must credit all inferences and credibilityassessments that the jury 

might have drawn in favor of the prosecution. The evidence need 

not be inconsistent with every conclusion save that of guilt so 

long as the jury can find guilt beyond a reasonable doubt. 

Credibility determinations are for a jury and not an appellate 

court. Finally, a jury verdict should be set aside only when the 

record contains no evidence, regardless of how it is weighed, 

from which the jury could find guilt beyond a reasonable doubt. 

To the extent that our prior cases are inconsistent, they are 

expressly overruled. 

25
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3. 

While the Petitioner’s relies upon the Cummings decision, that case is factually 

distinguishable from the instant matter. In Cummings, a police officer stopped a vehicle for 

speeding that the defendant was driving. The defendant was not the owner. Further, there 

were two passengers in the vehicle; one in the front and one in the back. While patting down 

the defendant for the officer’s safety and finding two bags of what appeared to be 

methamphetamine and three hydrocodone pills, the officer also noticed six boxes of cold 

medicine containing pseudoephedrine in a yellow Dollar General bag sitting on the rear 

floorboard of the car directly behind the driver’s seat. Upon a further search of the car, the 

officer found a white bag containing six boxes of matches, each box containing fifty 

individual match packets, and two bags of ten syringes each on the rear floorboard behind the 

passenger seat. 220 W. Va. at 436-37, 647 S.E.2d at 872-73. The defendant was charged and 

convicted of attempting to operate a clandestine drug lab and conspiracy to operate a 

clandestine drug lab. Id. at 437, 647 S.E.2d at 873. 

On appeal, the Court reversed both convictions. The Court’s reversal was based 

upon the insufficiency of the evidence introduced by the State to support its theory that the 

defendant, as the driver of the vehicle, was in constructive possession of the cold medicine 

and matches. Id. at 440, 647 S.E.2d at 876. In resolving the issue, the Court held in syllabus 

26
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

point six: 

In order to sustain a conviction for violation of W. Va. 

Code § 60A-4-411 (2003), by assembling any chemicals or 

equipment for the purpose of manufacturing methamphetamine, 

the State must prove beyond a reasonable doubt that the 

defendant had actual or constructive possession over the 

chemicals and/or equipment. In order to establish constructive 

possession where the defendant is present in a vehicle wherein 

such materials are found, the State must prove beyond a 

reasonable doubt that the defendant had knowledge of the 

presence of the chemicals and/or equipment to be used for the 

purposes of manufacturing methamphetamine and that such items 

were subject to the defendant’s dominion and control. 

Id. at 435, 647 S.E.2d at 871, Syl. Pt. 6. 

In Cummings, the Court found that the there was no forensic evidence, such as 

fingerprints, on the cold medicine or matches, no evidence that defendant had purchased 

items, and no evidence that the defendant was aware that the items were in the car. Id. at 440­

41, 647 S.E.2d at 876-77. Thus, the Court determined that “[t]here was simply no evidence 

to support an inference or actual or constructive possession. Absent a finding of actual or 

constructive possession, a finding that the Appellant was assembling the materials for the 

purpose of manufacturing methamphetamine is therefore not plausible.” Id. at 441, 647 

S.E.2d at 877. 

In the instant case, unlike the facts in Cummings, the evidence offered at trial 

showed that a canine unit alerted the officers to the presence of drugs on the front passenger’s 

27
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

side of a car in which the Petitioner was driving and his co-defendant was a passenger. Inside 

the vehicle, the state trooper, who was trained in handling methamphetamine, observed what 

he termed as a “young pop clandestine laboratory or shake and bake.” The trooper testified 

that he detected not only a chemical odor indicative of a meth lab, but also he observed a 

vapor or cloud emitting from a bag. Additionally, Alisha Neal, a forensic chemist with the 

West Virginia State Police Forensic Laboratory, testified that some of the items submitted to 

the lab tested positive for methamphetamine. The discovery of an active meth lab emitting 

both vapor and a chemical odor in the front seat of the car where both the Petitioner and codefendant were is much different that than ingredients being located in a bag in the back seat 

of the car. See Cummings, 220 W. Va. at 440-41, 647 S.E.2d at 876-77. We find that the 

evidence was sufficient beyond a reasonable doubt for the jury to find that the Petitioner “had 

knowledge of the presence of the chemicals and/or equipment to be used for the purposes of 

manufacturing methamphetamine and that such items were subject to the defendant’s 

dominion and control.” Id. at 435, 647 S.E.2d at 871, Syl. Pt. 6. The evidence also supports 

the conclusion that the Petitioner conspired with his co-defendant to produce the meth. 

Consequently, no error was committed by the trial court regarding this issue.18 

18We summarily reject the Petitioner’s argument that the trial court erred in allowing 

Officer Sturm of the Parkersburg Police Department to testify regarding the shake and bake 

method of making meth. The Petitioner contends that the testimony was irrelevant and was 

more prejudicial than probative. “A trial court’s evidentiary rulings, as well as its application 

of the Rules of Evidence, are reviewed for an abuse of discretion.” State v. Blake, 197 W. Va. 

700, 705, 478 S.E.2d 550, 555 (1996) (citation omitted). The officer’s testimony regarding 

(continued...) 

28
 
 

 

 

 

 

 

 

 

 

IV. Conclusion 

Based upon the foregoing, we affirm the trial court’s decision. 

Affirmed. 

18(...continued) 

the processes used in the shake and bake method, as well as the state of the clandestine lab 

found by the state trooper met the relevancy threshold under Rule 401 of the West Virginia 

Rules of Evidence as the evidence had the “tendency to make a fact more . . . probable than 

it would be without the evidence; and []the fact is of consequence in determining the action.” 

Further, the probative value of the testimony was not “substantially outweighed” by any 

danger of “unfair prejudice” to the Petitioner. W. Va. R. Evid. 403. Consequently, the trial 

court did not abuse its discretion in allowing Officer Sturm’s testimony. 

29